First responders offered lump sum payouts for occupational cancers

Angela Childers

Offering first responders with occupational cancers or diseases lump sum payouts rather than traditional workers compensation is taking hold in several states.

Currently, 33 states have presumption legislation that provides first responders with workers compensation coverage for certain occupational-related cancers and diseases, according to the nonprofit First Responder Center for Excellence. But a few states are offering alternatives to covering these occupational cancers in the comp system.

Mississippi lawmakers recently passed legislation to offer monetary benefits to first responders stricken by an occupational-related cancer or disease. H.B. 2835, called the Mississippi First Responders Health and Safety Act, passed unanimously in the Mississippi Senate and with only one dissent in the House in March. It was signed into law Tuesday by Gov. Phil Bryant and will take effect in 2021. The law offers a lump-sum payout to firefighters and law enforcement officers who have 10 or more years on the job upon the diagnosis of certain occupational-associated cancers as an alternative to workers comp coverage.

In 2017, Georgia lawmakers also passed legislation removing cancer presumptions from workers comp, but instead mandating that fire departments maintain sufficient insurance to pay for occupational-related cancer coverage for firefighters who have been on the job for at least a year, and also provides that the insurance benefits include lump-sum payouts similar to Mississippi’s law. Florida lawmakers are currently considering similar legislation that would provide firefighters a one-time cash payout of $25,000 upon the initial diagnosis of cancer in lieu of workers comp. New York also has lump sum payout legislation for occupational cancer diagnoses, but it only applies to volunteer firefighters.

Under the Mississippi law, first responders with metastatic cancers that require surgery, radiation or chemotherapy or those diagnosed with terminal cancer will receive a payout of $35,000 in lieu of pursuing comp coverage requiring, depending on the severity of the cancer and life expectancy. Those with nonmetastasized cancer are entitled to receive $6,250. First responders can also receive disability benefits beginning six months after the date of disability at 60% of their monthly salary up to $5,000, and up to $1,500 per month for volunteer firefighters. To obtain the lump-sum payout, first responders in the state need to provide proof of diagnosis by a board-certified physician in the medical specialty of the particular cancer or disease, according to the law’s language.

Rep. Joel Carter, R-Gulfport, said he purposely took workers compensation out of H.B. 2835 after receiving some pushback from workers compensation attorneys who didn’t want first responders “double dipping,” or receiving a payout in addition to workers comp benefits.

“(The legislation) gives counties and municipalities the option to purchase insurance or pay out through this process,” he said.

Carin Burford, shareholder at Ogletree, Deakins, Nash, Smoak & Stewart P.C. in Birmingham, Alabama, said the Mississippi law is interesting in that it offers an “either/or” benefit approach to first responders, allowing them to choose between seeking workers compensation or this new benefit. Plus, the new law also includes volunteer firefighters, and it also potentially reduces the burden on these first responders on what proof is needed to show a cancer or disease was caused by their occupation than compared to workers comp claims.

“Cancer, due to it having so many causes, is often harder for such a claim to be deemed compensable (under workers compensation),” she said. “This might get them payment on a more expedited basis because it’s potentially easier to prove” under the new law.

And although the payout options are not substantial, Ms. Burford noted that based on her research of the median income of firefighters in the state, which is approximately $40,000, the payouts under the new law are actually above the current cap limits for workers comp.

“If you’re a higher-wage earner and first responder, there’s more benefits potentially available,” she said. The law also requires cities and municipalities to obtain insurance coverage for such claims, so she noted that “carriers are going to need to be writing this insurance.”

However, she questions whether a claimant’s group health insurer would have rights to reimbursement for treatment they have provided in the event that the first responder asserts a claim, as the law is silent about any subrogation right their private health insurers could have.

Most first responders would have a fairly extensive amount of group health coverage already paid for by the employer, and the Mississippi legislation is merely cost-shifting what would already be paid for by the municipality, with the only difference being that the deductible may be paid for by the employee, said William Zachry, senior fellow at The Sedgwick Institute, part of Memphis, Tennessee-based Sedgwick Claims Management Services Inc.

But Johnny Bass, president of the Professional Fire Fighters Association of Mississippi, based in Jackson, called the legislation “a landmark bill” for the state’s firefighters.

“Workers comp doesn’t provide any benefit for occupational disease such as cancer (in Mississippi),” but the law “is just a start” and the association and its supporters hope to add more protections, such as coverage for post-traumatic stress disorder, in the next legislative session, he said.

Much of the Mississippi law was modeled after Georgia’s law, said Mr. Carter.

Georgia offers firefighters a general insurance package for cancer presumptions, which is easier for municipalities from a premium perspective, said Nathan Levy, founding partner of Levy Sibley Foreman & Speir LLC in Albany, Georgia.